Pszonka v Residential Tenancies Board

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 23 May 2025
• Neutral Citation: [2025] IEHC 291
• Docket Number: RECORD NO: 2024/179/MCA

Between

Roman Pszonka

Appellant

and

The Residential Tenancies Board

Respondent

and

David Whelan

Landlord

[2025] IEHC 291

RECORD NO: 2024/179/MCA

THE HIGH COURT

Landlord and tenant – Point of law – Notice of termination – Appellant seeking to appeal a determination order made by the respondent determining a notice of termination served by the notice party to be valid – Whether the notice party served a valid notice of termination

Facts: The appellant, Mr Pszonka, (the Tenant), sought to appeal a determination order made by the respondent, the Residential Tenancies Board (the RTB), on 13 March 2024 (the Determination Order) pursuant to s. 123(3) of the Residential Tenancies Act 2004. The appeal was on a point of law. The Determination Order concerned a property in Co. Dublin (the Dwelling). The Determination Order determined a Notice of Termination served by the Landlord, Mr Wilson (notice party to the proceedings), on 30 December 2022, to be valid and directed the Tenant to vacate the Dwelling within 21 days of the date of issue of the Determination Order. At the core of the arguments before the High Court (Phelan J) and central to the decision of the Tenancy Tribunal (the Tribunal), was the question of whether the Landlord served a valid Notice of Termination and in particular whether the Landlord was entitled to rely on ground 3 of the Table to s. 34(a) of the 2004 Act, which permits a landlord to terminate a tenancy on the grounds that he/she intends to enter into an enforceable contract for sale within nine months of termination of the tenancy.

Held by Phelan J that the Tribunal reached a decision which was open to it on the evidence before it. She was satisfied that it was open to the Tribunal to refuse to uphold the Tenant's challenge to the lawfulness of the termination of his tenancy based on that evidence. She found that no proper basis for interfering with the decision on the basis of error of law had been demonstrated in respect of the Tribunal’s approach to the application of ss. 34, 35 and/or 62 of the 2004 Act. She was satisfied that there was no merit to the complaint of prematurity and the Tribunal was entitled to proceed to determine the dispute. She was satisfied that there was no error of law apparent in the Tribunal’s conclusion that remote proceedings resulted in no unfairness or prejudice in this case having regard to the ability of the Tenant to present his case and challenge the case against him on the evidence adduced and in the absence of an identifiable challenge to the vires of the RTB or the Tribunal being advanced. She was satisfied that the Determination Order made in this case aligned with previous determinations and no inconsistency or error of law in the Tribunal’s approach to this case regarding the case-law of the Superior Courts had been established. On the facts of this case, she held that the Tribunal was entitled to make a finding that the Landlord did not breach his obligations based on the material before it. In the absence of error of law in the approach to the assessment of the evidence, she held that the decision on whether a breach of Landlord’s obligations was established or not was a matter entirely for the Tribunal.

Phelan J held that the Tenant’s appeal on a point of law must fail. She held that it had not been established that the Tribunal decision challenged in these proceedings had been vitiated by error of law. Therefore, she dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 23 ^rd of May, 2025.

INTRODUCTION

1 . In the within proceedings, the Tenant seeks to appeal a Determination Order made by the Residential Tenancies Board (hereinafter “the RTB”) on the 13 ^th of March, 2024 (“the Determination Order”) pursuant to s. 123(3) of the Residential Tenancies Act, 2004 (as amended) (hereinafter “the 2004 Act”). The appeal is on a point of law.

2 . The Determination Order concerns a property in Co. Dublin (hereinafter “the Dwelling”). The Determination Order determined that a Notice of Termination served by the Landlord (“the Landlord”) on the 30 ^th of December, 2022, to be valid and directed the Tenant to vacate the Dwelling within 21 days of the date of issue of the Determination Order.

3 . At the core of the arguments before me and central to the decision of the Tenancy Tribunal (hereinafter “the Tribunal”), was the question of whether the Landlord (Notice Party to these proceedings) served a valid Notice of Termination and in particular whether the Landlord was entitled to rely on ground 3 of the Table to s. 34(a) of the 2004 Act, which permits a landlord to terminate a tenancy on the grounds that he/she intends to enter into an enforceable contract for sale within nine months of termination of the tenancy.

4 . Although the Landlord was present in Court for the duration of the hearing before me, he did not participate. In considering this appeal on a point of law I have been assisted, however, by the Landlord's evidence to the Adjudicator and the Tribunal and his written submissions and correspondence, all of which were available to me on the Affidavit evidence on this appeal.

BACKGROUND

5 . It is common case that the tenancy which is at the heart of the within proceedings commenced on the 7 ^th of December, 2018.

6 . By letter dated the 30 ^th of December, 2022, the Landlord served a Notice of Termination. In his cover letter, the Landlord stated:

“It comes with great regret and a heavy heart that I must inform you that given recent changes in my family's personal circumstances that we have no choice but to sell our property at 82 Woodford, Brewery Road, Stillorgan, Co. Dublin A94 FY51 (“the rental property”) at the earliest opportunity. As such, please find enclosed

• the formal Termination Notice as prescribed by the Residential Tenancy Board (“RTB”).

• the Statutory Declaration for Landlord intending to sell the dwelling. A copy of the aforementioned documents shall be sent to the RTB via email1 later today.

The formal Termination Date within the attached notice is Friday, 30 June 2023. However, should you identify a suitable tenancy elsewhere and wish to vacate the property at an earlier date please let me know. I would like to thank you for taking good care of the property during your tenancy and I wish you all the best for the future.”

7 . The Notice of Termination set out the reason for termination as follows:

“The reason for the termination of the tenancy is because the landlord intends, within 9 months after the termination date, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his/her interest in the dwelling or the property containing the dwelling (the “agreement to sell”).”

8 . The Notice also referred to the requirement on the Landlord to offer the opportunity to the Tenant to re-occupy the dwelling if the Landlord does not enter into the agreement to sell. The Tenant was advised that if he wished to dispute the Notice of Termination, any issue as to the validity of the Notice of Termination or the right of the Landlord to serve it, must be referred to the RTB under Part 6 of the 2004 Act within 28 days from the date of receipt of it or where there is no breach of tenancy obligations, within 90 days from the date of receipt of it. Suggested dates for inspection in June, 2023, were given and the Tenant was requested to confirm a date and time convenient for him.

9 . Even though a Notice of Termination and accompanying Statutory Declaration was served on the Tenant on the 30 ^th of December, 2022 and the Tenant did not dispute that he had received them, the Tenant remains in occupation. He did not refer a dispute challenging the validity of the Notice of Termination within the prescribed time periods but raises this as a defence to the Landlord's overholding claim in these proceedings.

10 . Following the service of the Notice of Termination, the Landlord corresponded with the Tenant by text and email in an endeavour to agree access to the house for a valuer/estate agent inspection and for Landlord inspection. The Tenant did not agree to facilitate same. The Landlord also sent on the details of other properties available in circumstances where the Tenant required alternative accommodation but the Tenant did not respond to queries from the Landlord in relation to his efforts to find somewhere else to live.

11 . On the 29 ^th of June, 2023, the Landlord made an application to the RTB pursuant to s. 78 of the 2004 Act. His complaint related to overholding by the Tenant following the service of a valid Notice of Termination.

12 . Even after the expiry of the notice period and the referral of a complaint to the RTB, the Tenant's attitude to the erection of a sign at the property was that it would be a breach of the Tenant's right to enjoy peaceful and exclusive occupation of the Property. He stated in an email on the 11 ^th of July, 2023, that any sign would be removed and the breach reported to the RTB.

13 . The RTB arranged for an Adjudication hearing to be convened and by email dated 10 ^th of October, 2023, the parties were notified that an Adjudication hearing would take place on the 27 ^th of October, 2023, to determine the dispute. Along with this email, the Board also furnished the Tenant with a copy of the Board's “ Guide to Evidence” and its “ Guide to virtual hearings.”

14 . An Adjudication hearing took place as scheduled. Following the hearing, the Adjudicator furnished the RTB with an Adjudication report, which included the Adjudicator's determination of the dispute. Under cover of a letter dated 22 ^nd of November, 2023, the Adjudicator's report issued to the parties to the dispute. In his report, the Adjudicator summarised the respective positions of the parties very succinctly. As regards the Tenant's evidence the Adjudicator noted as follows:

“The...